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Professional Golf Global Group, LLC v. Huynh

Florida Court of Appeals, Second District

August 3, 2018

PROFESSIONAL GOLF GLOBAL GROUP, LLC and LYNN VAN ARCHIBALD, Appellants,
v.
ANN HUYNH, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Hillsborough County; Gregory P. Holder, Judge.

          Jesse L. Ray and Elizabeth M. Fernandez of Jesse Lee Ray Attorney at Law, P.A., Tampa (withdrew after briefing), for Appellants.

          Lynn Van Archibald, pro se.

          No appearance for Appellant Professional Golf Global Group, LLC.

          Brendan R. Riley of Riley Law Group New Port Richey, for Appellee.

          CRENSHAW, Judge.

          Professional Golf Global Group, LLC ("PGGG") and Lynn Van Archibald ("Archibald") appeal the trial court's nonfinal order denying their motion to set aside the judicial default and default final judgment filed under Florida Rule of Civil Procedure 1.540(b). We have jurisdiction. See Fla. R. App. P. 9.130(a)(5). Because PGGG and Archibald established excusable neglect, raised meritorious defenses, and acted with due diligence, we reverse.

         On June 23, 2017, Archibald was served with the summons and complaint in his individual capacity and as an officer of PGGG. The two count complaint seeks damages for breach of contract (count I) and money lent (count II). The complaint alleges that: Ann Huynh ("Huynh") lent Archibald $70, 000 for the purpose of operating and making improvements to PGGG, a golf course; PGGG and Archibald breached the contract by failing to pay the debt; and PGGG and Archibald are jointly and severally liable for the $70, 000.

         On July 11, 2017, prior to the expiration of the twenty-day period in which PGGG and Archibald had to file their response, Archibald sent a letter to Huynh and her counsel advising that he was seeking counsel to represent both parties and that he needed additional time to respond to the complaint. The letter was also mailed to the court and docketed on July 13, 2017, the day the responses were due.

         That same day, July 13, 2017, Huynh filed a motion for clerk's default, which was denied. On Tuesday, July 18, 2017, Huynh filed her motion for judicial default and mailed a copy to PGGG and Archibald. The motion for judicial default misstated that the date for PGGG and Archibald to respond was July 9, 2017, and did not mention the letter sent by Archibald requesting more time to respond to the complaint. The order granting the motion for judicial default was rendered Friday, July 28, 2017, and a copy was mailed to PGGG and Archibald.

         On Tuesday, August 1, 2017, Huynh filed her motion for default final judgment and mailed a copy to PGGG and Archibald. The order granting the default final judgment was rendered on August 8, 2017. A copy was mailed to PGGG and Archibald.

         Counsel for PGGG and Archibald filed their notice of appearance the following Friday, August 18, 2017. On Tuesday, August 22, 2017, counsel filed the motion to vacate default and default final judgment. The motion was initially unsworn; however, the trial court allowed PGGG and Archibald additional time to prepare and file an affidavit in support of their motion. The affidavit in support of the motion to vacate provided that PGGG and Archibald had been served with two lawsuits and an action for receivership, all around the same time. Archibald had contacted an attorney to represent PGGG and himself, but after Archibald received notice of the other lawsuits, and discussed them with the attorney, the attorney determined that he was unable to represent PGGG and Archibald. Archibald was looking for another attorney and had not yet retained an attorney when the responses in this case were due. Accordingly, Archibald wrote the letter to Huynh's attorney and to the court advising that he was looking to retain an attorney and needed more time to file a response to the complaint.

         The affidavit also raised a number of defenses to the complaint. Specifically, the affidavit stated that the agreement between the parties was never intended to be a loan and that Huynh never loaned PGGG or Archibald $70, 000. The affidavit also stated that according to the terms of the agreement, lack of payment was not a breach of the agreement. Finally, the affidavit provided that Huynh breached the agreement first by failing to move out of a residence on the property, as required by the agreement. PGGG and Archibald also raised legal defenses in their motion to vacate, including that PGGG did ...


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